Wiretaps/Surveillance Detection

7/28/2019 Wiretaps/Surveillance Detection

1/44

1

Victims of Wiretaps and Electronic Surveillance

It is illegal and actionable for a third person to

intercept or record your private communications,conversations, and stored electronic data. This

criminal conduct can range from a wiretap to listen in

on phone conversations, interception of email

communications, and even programming your cell

phone to to act as a "bug" when you are not using

your cell phone. In this electronic age, one can expect

that illegal surveillance will only increase assurveillance devices become cheaper and more

readily available. But these eavesdroppers can be

made to pay a price.

If your right to privacy has been violated by a wiretap

or other unauthorized interception of electronic data

or communications, your rights under the federal

Wiretap Act, 18 U.S.C. secs. 2510-2522. Do not over-

react. Beat them at their own game. Read this page

and call my office. If you question whether you are

under surveillance, read "Am I Under Surveillance?"

Victims of wiretaps and intercepted communications

can turn the tables on their perpetrators. Federal law

provides for civil damages starting at a minimum of


2/44

2

$10,000. Many juries would consider the invasion of

privacy alone to be worth more than that.

Wiretaps are illegal unless very stringent warrantprocedures are followed. Wiretap and similar

evidence, if illegally obtained, is never admissible in

any federal, state or local court. Even the attempt to

use such illegally obtained evidence will result in civil

damages in favor of the victim.

I see wiretap cases in primarily in divorce andbusiness settings, but they can arise anywhere. In the

field, detecting wiretaps and other methods of

intercepting private conversations and data is called

"Technical Surveillance Countermeasures," or TSCM.

If you believe you may be the victim of a wiretap or

other interception of private information, call me

immediately to discuss your options. I will assist you

in obtaining an investigator and guide you through the

process to determine if you have a case.

A leading investigative firm in detection of wiretaps

and other surveillance is International Investigators,

Inc., providing nationwide TSCM services. Tim Wilcoxis an expert in all aspects of TSCM. Learn more about

TSCM by clicking International Investigators, Inc.


3/44

3

Inmate or prisoner wiretaps create special issues of

consent under the Wiretap Act. If you are incarcerated

or phoning someone who is, assume that your

conversations are recorded and will be used againstyou. Click here to learn more.

LISTENING IN: THE USE OF AUDIO RECORDINGS IN

FAMILY

PROCEEDINGS

Bari Brandes Corbin, Evan B. Brandes

Divorcing couples and those sparring over child

custody rights are often tempted to

record their spouses (present or former) in

conversation. After asking, "Is my husband

calling a paramour the middle of the night?" or, "Is my

ex-wife badmouthing me to my

kids?', they may decide to record others'

conversations.

These recorded discussions, they are sure, will help

them to obtain a divorce, get a


4/44


5/44

5

guilty of eavesdropping when he unlawfully engages

in wiretapping or mechanical

overhearing of a conversation. "Wiretapping meansthe intentional overhearing or

recording of a telephonic or telegraphic

communication by a person other than the

sender or receiver, by means of any instrument,

device or equipment. ... Mechanical

overhearing of a conversation means the intentional

overhearing or recording of a

conversation or discussion, without the consent of at

least one party thereto, by a

person not present thereat, by means of anyinstrument, device or equipment." In Berk

v. Berk, 70 AD 2d 943 (2 Dept 1979), for example, the

court granted a mother's motion

to suppress, pursuant to Civil Practice Law and Rules

s 4506, certain taped telephone

conversations between the mother and children,

obtained without the mother's consent.


6/44

6

The Appellate Division held that "Without proof of

consent of at least one party to the

conversations, the taped conversations may not beput into evidence."

Some tape recordings of discussions are not the

result of illegal eavesdropping; as

long as the recording is made with the consent of one

party to the conversation, it is a

lawful recording. Thus, your client is allowed to record

his or her own conversation with

any other person, including a threatening spouse or

one who admits adultery.

When an admissible recording helps your client's

case, you need to know the rules for

getting it into evidence.

LAYING A FOUNDATION FOR THE ADMISSION OF

SOUND RECORDINGS

Sound recordings of relevant events are admissible in

evidence as long as a proper


7/44

7

foundation is laid. In People v. Ely, 68 NY2d 520

(1986), the Court of Appeals held that

there are four different ways to authenticate sound

recordings of conversations. The

court noted that the admissibility of a tape-recorded

conversation requires proof of the

accuracy or authenticity of the tape by clear and

convincing evidence establishing that

the offered evidence is genuine and that there has

been no tampering with it.

The necessary foundation for the admissibility of

sound recordings may be provided

by: 1) the testimony of a participant in the

conversation who can state that it is a

complete and accurate reproduction of the

conversation and has not been altered; 2)

the testimony of a witness to the conversation or to itsrecording, such as the machine's

operator, that it is a complete and accurate

reproduction of the conversation and has


8/44

8

not been altered; 3) testimony of a participant in the

conversation, together with proof

by an expert witness that after analysis of the tapes

for splices or alterations there was,

in his or her opinion, no indication of either, or; 4) a

chain of custody method which

requires, in addition to evidence concerning the

making of the tapes and identification of

the speakers, that within reasonable limits those who

have handled the tape from its

making to its production in court can identify it and

testify to its custody and unchanged

condition. The fourth method may be used when no

auditor of the conversation is

available. People v. Ely, 68 NY2d 520 (1986).

The foundation for sound recording requires a

showing that the entire tape is

complete, accurate and free from alteration. These

requirements cannot be avoided by


9/44

9

introducing only isolated portions of tape to prove a

particular prior inconsistent

statement of a witness who testifies at trial. People v.Joyner, 240 AD2d 282 (1st Dept.

1997). A sound recording is not admissible if it is so

inaudible and indistinct that a jury

must speculate as to its contents. People v.

Carrasco, 125 AD2d 695 (2d Dept. 1986); People v.Harris, 199 AD2d 636 (3d Dept,

1993). A recording is sufficient if an independent third

party can listen to the recording

and produce a reasonable transcript. People v.

Carrasco, supra. If the recording media

is sufficiently audible, fair and accurate as to material

events recorded thereon, the

presence of some inaudible portions will not preclude

its admissibility. See, e.g., People

v. Morgan, 175 A.D2d 930, 932 (2d Dept. 1991); People

v. Harris, supra. These

infirmities "go to the weight of the evidence, not its

admissibility." People v. McGee, 49


10/44

10

NY2d 48, (1979); People v. Wilson, 207 A.D.2d 463 (2d

Dept. 1994).

PROVING IDENTITY

The identification of the voices on the tape is another

condition to the admissibility of a

sound recording. A witness may testify that herecognized a person's voice as being

that of the defendant's husband, whether he heard it

in person, over the telephone, or

by some other mechanical or electronic means. The

Court of Appeals has also held that

a voice heard may be compared with the voice of a

speaker whom one meets for the

first time as well as with the voice of a speaker whom

one has known before. People v.

Dunbar Contracting Co., 215 NY 416,

422 (1915). In ascertaining the identity of the voice on

a tape recording, the


11/44

11

remoteness of the personal conversations between

the identifying witness and

defendant from the time of the voice identificationaffect the weight, rather than the

competency, of the evidence. People v. Dinan, 15

AD2d 786 (2d Dept.), aff'd,

11 NY2d 350 (1962).

A telephone caller's identity may be established by the

substance of the conversation.

For example, where the caller refers to matters that

only a particular person could have

known about, this fact may be used to establish the

identity of the caller. People v.

Lynes, 49 NY2d 286 (1980).

When a witness testifies to the identity of a person to

whom he has placed a call, he

may be able to make the identification on the basis of

familiarity with the recipient's

voice. People v. Dunbar, supra. See also People v.

McDermott, 160 Misc.2d 769 (Dist.


12/44

12

Ct. Nassau Co.1994) ("If the witness was not

acquainted with the speaker, and,

therefore, did not recognize his voice at the time of

the telephone conversation, the

telephone conversation is admissible if the witness

testifies that she met the speaker

thereafter and then recognized his voice as the voice

she had heard over the

telephone"). In People v. Lynes, the court stated:

Thus, in part on the theory that the customary mode

of operation of telephone users

provides some assurance of reliability, in someinstances the placing of a call to a

number listed in a directory or other similarly

responsible index of subscribers, coupled

with an unforced acknowledgment by the one

answering that he or she is the one so

listed, has been held to constitute an adequate

showing.


13/44

13

Thus, even if the witness has no familiarity with the

recipient's voice, the identification

of the speaker may be made on the basis ofcircumstantial evidence.

TRANSCRIPTS AS TOOLS

Finally, if a recorded conversation is admitted into

evidence, it may also be helpful for

the jurors to be able to view a transcript of it. A

recorded conversation is considered a

form of demonstrative evidence that "illustrates" the

recording (People v. Feld, 305 NY

322 (1953)), so the court can allow the jury to view atranscript of the recording while

listening to it (People v. Tapia, 114 AD2d 983 (2d Dept.

1985)).

CONCLUSION

They say a picture is worth a thousand words. So, too,

a recording of an unguarded


14/44

14

conversation may be worth a lot more than an

opposing party's carefully worded

testimony.

As we have seen, weeding out the admissible from the

inadmissible recorded

conversations is a pretty straightforward affair. As

long as at least one party to the

discussion consents to the making of the recording, it

may be admissible. All it takes is

relevance and the laying of a proper evidentiary

foundation. With these, the opposing

side's own words may prove to be some of your

client's most valuable evidence.

FNa1. Bari Brandes Corbin, a member of this

newsletter's Board of Editors, maintains

her offices for the practice of law in Laurel Hollow, NY.

She is co-author of Law and the

Family New York, Second Edition, Revised, Volumes 5

& 6 (Thomson-West). Evan B.


15/44

15

Brandes, also a member of this newsletter's Board of

Editors, maintains his office for

the practice of law in New York, NY. Both are Vice-Presidents of Joel R. Brandes

Consulting Services Inc., Jersey City, NJ, and Ft.

Lauderdale, FL

(www.brandeslaw.com or www.nysdivorce.com), and

editors of its Web sites. They both

co-author the annual supplements to Law and the

Family New York, Second Edition,

Revised. (c) Copyright, 2009. Joel R. Brandes

Consulting Services, Inc., Bari Brandes

Corbin and Evan B. Brandes. All rights reserved.

The fundamental problem with English law is that

you can have all these rules for concealing evidence,

and you can have all this intellectual dishonesty that


16/44

16

goes on in the courts, and the stupefying unreality of

what goes on in courts.

Evan Whitton author of the Cartel: Lawyers and their

Nine Magic Tricks1

[the exclusionary rule] rests on the absurd

proposition that a law enforcement error, no matter

how technical, can be used to justify throwing an

entire case out of court, no matter how guilty the

defendant, or how heinous the crime. ...the criminal

goes free, the officer receives no effective reprimand,and the only ones who really suffer are the people of

the community.

Ronald Wilson Reagan2

Ever since Jeremy Bentham wrote his scathing

critique of the law of evidence, both philosophers and

legal scholars have criticized the exclusionary rules of

evidence, arguing that formal rules excluding entire

classes of evidence for alleged unreliability violate

basic epistemological maxims mandating that all

relevant evidence be considered. Although particular

pieces of evidence might be excluded as unreliable,

they argue, it is a mistake to make such judgments forentire categories, as opposed to making them only in

the context of particular pieces of evidence offered for

specific purposes.


17/44

17

Epistime, 2008 Encyclopedia Britannica Online

Exclusionary Evidence

Exclusionary3 evidence (for lack of a better name) is

evidence which, by law, is not allowed in a criminal

prosecution even though there may be no claims

against its authenticity. Ie. There would be no reason

to believe the witness is lying or that the physical

evidence is artificial or otherwise misleading.

Some examples would be:

Hearsay

Second hand testimony heard from another party who

is no longer available to attend court.

OpinionAn opinion on actions performed relevant to the case

at hand made by a non-expert.

Evidence deemed irrelevant

Privilege

Evidence given by a lawyer incriminating his/her

client.

Evidence forced to be given by a Priest received in

confession by a penitent.

Evidence forced to be given by a witness

incriminating his/her spouse.


18/44

18

Evidence forced to be given by a child incriminating

his/her parent if crime was not of a serious nature.

Disposition and Character

Evidence, including the conclusions of either criminalor civil proceedings, not directly connected to the

case at hand, but implying or declaring the accused

has a less than favourable character. (This however

can be introduced in response to positive character

evidence introduced by the defence.)

Public interest

State secrets

Evidence which has been obtained illegally or

improperly.

Fruit of the Poisoned Tree evidence evidence

which has itself been obtained legally but the

information to lead to such discovery was obtained

illegally or improperly.

Prejudicial Evidence

Evidence which of itself is otherwise legal but is

deemed by the court that its prejudicial effects would

outweigh its probative value. Ie. The evidence would

be relevant to the case but the court (the judge) has

decided that the jury would not be intelligent enoughto grant it its proportionate value but instead would

estimate it to be more incriminating than the alleged

correct estimation of the court.


19/44

19

From this list there are certainly some categories that

many would think are justifiable.

Someone who is not a proven expert should not beallowed to give an opinion that would not be based on

sufficient acquired knowledge.

Privilege

without prejudice privilege- what is said between

parties in attempting to negotiate a settlement cannot

be used against either party back in court.

marital privilege- protecting conjugal confidences

clergy and communicant privilege

doctor and patient privilege

State secrets

Confessions made under duress.

However that still leaves numerous categories of

evidence, which, when excluded, works against the

original the truth will out principle traditionally

utilized for any important public hearing, especially

one held to prosecute crime for the worthy goals of

maintaining law and order.

Glossary

Direct evidence

Evidence based on personal knowledge or

observation that, if true proves a fact. Eg witness


20/44

20

testimony, video or audio recording of the crime, DNA

evidence.

Circumstantial evidence

Indirect Evidence that creates, through reasoning, aninference that a particular fact exists. Eg the lack of an

alibi at a time when the accused would normally have

one; inability to reasonably explain the possession of

a large amount of money, a working knowledge of the

type of weapon that the victim died from.

Corroborating evidence

Supplementary evidence that tends to strengthen or

confirm the initial evidence

Demonstrative evidence

Physical evidence that can be seen and inspected

Forensic evidence

Evidence collected and studied through the use of

sciences and other specialised knowledge such asbiology, chemistry

Exclusionary Rules of a Questionable Nature

Evidence Obtained Illegally or Improperly

Sometimes known as the disciplinary principle, the

reason given to deny this type of evidence is that it

will discourage improper police methods. The

improper police methods referred to are those which


21/44

21

violate every citizens civil rights to privacy; to quote a

certain constitution: to be secure in their persons,

houses, papers and effects against unreasonable

searches and seizures

Two questions need to be asked about this manner

chosen to defend our liberties:

#A Isnt there a lot of overkill involved?

Yes, it is important that we retain our privacy with

regards to our persons and our homes, but should it

be at the cost of letting the most heinous wrongdoers

amongst us walk free? As an analogy, drink driving is

a scourge of our roads that causes the deaths and

maiming of many innocent people, however would

that justify us instituting capital punishment for those

drivers caught over the alcohol limit? Surely there canbe lesser disciplinary actions that would still prevent

those in authority from abusing their powers?

#B What Comeback do the Innocent Have?

If through carelessness the police fail to obtain the

correct address for a search warrant and a law abidingfamily have to needlessly suffer the disruption of a top

to bottom house search, or if police intentionally stop

and inspect a vehicle without due cause but merely

for the sake of harassing the driver they may feel


22/44

22

prejudiced against, then as the victims have

committed no crime that they can be pardoned for,

what options for redress are open to them?

How things should be

Would not a simpler and much more justice orientated

solution to this problem of controlling police

behaviour be that anyone who has had his rights

violated due to illegal police action, could summarily

receive from the police department (perhaps with theindividual officer responsible paying a share)

damages according to a pre-set scale? (A search

without a warrant could be at the higher end of the

scale while one done with warrant but exceeding the

warrants parameters would be at the lower.) Over

time the scale could be raised or lowered in

accordance with the rate of violations still occurring.

The general public would probably have little

complaint about a convicted rapist murderer receiving

$10,000 in compensation for an illegal search, if they

knew he had still been justly convicted and sentenced

for his ghastly crime.

Disposition and Character Evidence


23/44

23

Some legal commentators have stated that character

evidence (criminal record, etc.) should not be allowed

in court because it is simply irrelevant.

As a general rule evidence of any prior convictions of

the accused is not admissible. This ensures the jury

judges the case on its merits without prejudging the

accused on a previous record.4

Of course this is patently ridiculous.

People should be judged by their conformity, theirhonesty, their inhibitions or their lack thereof. To

commit a crime one needs opportunity, ability, motive

and one more very important factor: a lack of

inhibition to break the law. We are not all of the type to

take advantage, at the expense of the innocent, of any

situation that may unexpectantly arise. That is the

reason lost untraceable but valuable property is

occasionally handed in to police stations; why

potential victims in vulnerable situations are not taken

advantage of. If an accused has instances of honesty

or dishonesty in his or her history then even though it

obviously is not direct evidence conclusive of

innocence or guilt5, it is nonetheless relevant:something to be added to other direct or

circumstantial evidence presented to aid the jury to

coming to their final conclusion.


24/44

24

Circumstantial versus Direct

One tactic often used to discredit character evidence

is to claim that a previous conviction does not meanthat the accused must have done it this time.

One of the most obvious dangers, and one which

varies in degree depending on the facts, is that the

fact-finder will erroneously conclude that because a

person has a tendency to behave or think in a

particular manner, he or she must have acted orthought in the same or similar manner on the

occasion which is the subject of the proceeding.5

(emphasis added)

This is quite true. It does not mean that the accused

must have done it. It does however mean that there is

a higher likelihood than normal that the accused did it.This is precisely the difference between direct and

circumstantial evidence. Defenders of the law, using

what is known as the straw man argument, claim that

as character is not direct evidence it should thus be

thrown out. The fact is however, no one claims it is

direct evidence; it is merely circumstantial evidence,and as such should be allowed in.

Questions to be asked


25/44

25

If criminal history is indeed irrelevant in the

determining of guilt this does lead to a number of

questions.

A.

If for example the prior acts of a party show that

person to possess a moral conviction to act fairly at

all times one would expect that party to give truthful

evidence and also one would doubt such a person

would act so as to mislead6Is the law so blatantly hypocritical that evidence of

good character is relevant but bad character not? Of

course it is true that good character should be given

more weight than bad character. Someone who has

handed in lost valuables would in probability not at a

later date commit theft, but there may be a number of

reasons why someone who has stolen before, still

decides not to steal at a later opportunity: he did not

in fact recognise the opportunity; he suspected the

opportunity was police entrapment; he had other

things on his mind. However despite that, the fact

remains that one with no inhibitions against

committing a crime is more likely to do so than theaverage person, and this, therefore, is relevant.

B.


26/44

26

If a persons past is irrelevant to how they act in the

future then why is it that:

In Victoria a person is disqualified from becoming orremaining as a local government Councillor if they

have been convicted of an offence committed when

they were 18 or more years of age which is punishable

upon first conviction for a term of imprisonment of 5

years or more anywhere in Australia. The

disqualification lasts for seven years. (Section 28,

Local Government Act 1989 Vic)

The Commonwealth Constitution states that persons

convicted of offences which are punishable by one

year of imprisonment or longer cannot hold a seat in

Federal Parliament. (S44(ii))

People who within the last five to ten years have been

imprisoned are automatically barred from juryservice9.

Australians wishing a UK visa for more than six

months will be automatically prevented if they have

spent more than 6 months in jail within the last 10

years9.

C.

Why do Civil law countries such as France give juries

the criminal history of the accused?


27/44

27

My reading suggests that even those comparative

lawyers who are critical of the French criminal law do

accept that French courts are fair, and that the verdict

reached is generally accurate. Justice JamesBurchett, Australian Federal Court, 199612

D.

Why is criminal propensity (sometimes described in

statute as tendency) allowed to be presented

against an alleged wrong doer in Australian civil

courts when one party, for example, may be suinganother party for assault? Section 101 (1)

Commonwealth Evidence Act 1995.

The issue of admitting criminal history is debated at

the International Debate Education Association on the

web athttp://www.idebate.org/debatabase/topic_details.php?

topicID=204. The following contemporary quotes from

a judge and an academic show that there definitely is

belief in the relevance of criminal history.

The courts have traditionally viewed with great

suspicion any attempt to use character ordispositional evidence for this purpose [proving guilt].

In so doing, the courts are not suggesting that the


28/44

28

accuseds behaviour on other occasions is not

relevant to the facts in issue, but rather 7

[T]he reason for this general rule [excluding

character evidence] is not that the law regards suchevidence as inherently irrelevant but that it is believed

that if it were generally admitted jurors would in many

cases think that it was more relevant that it was, so

that, as it is put, its prejudicial effect would outweigh

its probative value.8

Prejudicial Evidence

The law, as we all know, recognises a judicial

discretion to exclude admissible evidence on the

basis that its prejudicial effect outweighs its probative

value. The rule is described as the Christie

exclusion from the case R v Christie [1904] AC

545.10

This is the famous, or infamous, legal concept

recognized in common law jurisdictions where valid

evidence can be excluded if the judge believes the

jury are not as intelligent as he or she is to be able to

take evidence of similar facts or bad behaviour into its

correct context. We are to believe that not just somemembers but the majority of a jury are hot under the

collar rednecks who will lose all reason and become

inflamed at certain possibly incriminating evidence.


29/44

29

Perry v R (1982) 44 ALR

In 1982 a Mrs Emily Perry was tried and convicted of

attempting to murder her husband by poison. The

prosecution evidence against Perry was not only that

her husband suffered arsenic and lead poisoning

while living with her and that she was the beneficiary

of a number of insurance policies on him, but more

significantly, over the previous eighteen years three

other people who had lived with Perry had also diedfrom ingesting harmful substances, two from poison

and one form an overdose of barbiturates. The deaths

of two financially benefited Perry.

The conviction was appealed to the Australian High

Court on the grounds that the evidence of the three

deaths should not have been allowed in court. Thedecision of the court was far from unanimous, with

some judges declaring that evidence of the non

poison and the non- financial benefiting deaths should

not have been allowed. Justice Lionel Murphy, the

only High Court judge to be tried for perverting the

course of justice, held that all the evidence shouldhave been excluded. The appeal was subsequently

allowed and Emily Perry was freed.


30/44

30

Ones immediate reaction to becoming aware of this

case, might be to hope that to celebrate her release,

Mrs Perry took Lionel Murphy home to dinner, but

after first arranging to take out a substantial insurancepolicy on his life.

Reasons

Various reasons have been put forward by judges and

academics to defend this practice of excluding

evidence when no other avenue is available.

One reason is that it creates undue suspicion against

the accused and undermines the presumption of

innocence ( Perry v R (1982) per Murphy J; Reg. v.

Boardman (1975) AC per Lord Hailsham;

Another is that tribunals of fact, particularly juries,

tend to assume too readily that behavioural patternsare constant and that past behaviour is an accurate

guide to contemporary conduct (89 Cowen and Carter,

Essays on the Law of Evidence, (1956) at 144-145;

Imwinkelried, "The Use Of Evidence Of An Accused's

Uncharged Misconduct To Prove Mens Rea: The

Doctrines which Threaten to Engulf the CharacterEvidence Prohibition", (1990) 51 Ohio State Law

Journal 575 at 581-582; Ligertwood, Australian

Evidence, 2nd ed (1993) at 81-82; Palmer, "The Scope


31/44

31

of the Similar Fact Rule", (1994) 16 Adelaide Law

Review 161 at 169) .

Similarly, "(c)ommon assumptions about

improbability of sequences are often wrong" (90 Perry(1982) 150 CLR at 594 per Murphy J), and when the

accused is associated with a sequence of deaths,

injuries or losses, a jury may too readily infer that the

association "is unlikely to be innocent" (91 ibid) .

Another reason for excluding the evidence is that in

many cases the facts of the other misconduct maycause a jury to be biased against the accused (92 R. v.

Bond (1906) 2 KB 389 at 398 per Kennedy J; Piragoff,

op.cit. at 4-5; Cross on Evidence, 2nd Aust. ed. (1991)

at par.21145; Ligertwood, op.cit. at 81) . In the present

case, for example, once the evidence was admitted, it

would require a superhuman effort by the jury to

regard the appellant as other than a person ofdepraved character whose uncorroborated evidence,

whether or not he was guilty, could not be acted upon

except where it supported the prosecution case.

How Things Should Be

As in most European Civil law countries, allow in any

evidence of the accuseds history. If the defence truly

believe that this evidence deserves less weight than it

first appears at face value, then they must have a

reason. Perhaps some scholars they have read have


32/44

32

given reasons why the specific evidence is only of

limited value. In that case the defence counsel are

certainly free to inform the jury of these reasons.

The truth will out.

Responses to Comments and Questions about

Exclusionary Evidence

Allowing the accuseds criminal history to be

introduced would undermine the presumption of

innocence.

At the very beginning of a trial effort is made to pick a

jury who so far have no preconceptions about the

accused. This is what the presumption of innocence

means. It is ridiculous to declare that the presumption

should always remain after the prosecution is allowed

to introduce evidence. If evidence is invalid, such asnon-expert evidence, then it should be denied

because it is amateurish and has no authority, not

because it undermines the presumption of innocence.

Juries tend to assume too readily that behavioural

patterns are constant and that past behaviour is an

accurate guide to contemporary conduct.

One wonders how anyone could possibly obtain

empirical evidence of this? Researchers, or any other

scholars, are never allowed into the jury room, and


33/44

33

besides, just who is to say what is the correct degree

of accuracy of past behaviour that jury beliefs should

be measured against? One of the great virtues of a

jury is that there can be up to twelve opinions on anypiece of evidence. Some jurors may even believe, like

unfortunately too many judges, that the accuseds

very long history of similar crimes has absolutely no

relevance upon the matter at hand. The jurors can

then bring their combined life experiences to bear to

debate the issue and hopefully come to a commondecision.

As legal commentator Evan Whitton so astutely noted

in his book The Cartel: Lawyers and their Nine Magic

Tricks, when well known New York mobster John

Gotti was criminally prosecuted in 1990, the jury was

given ample evidence, though wiretaps, of his criminal

connections and general operations but nothingactually specific about the crime he was charged with.

As the foreman later said (jurors in the United States

are allowed to speak publicly after the trial) I have to

admit that voting not guilty was a very unpleasant

result for me. I felt truly that he was guilty as hell but I

have to admit that the evidence just didnt hold up.11If a jury hears of an accuseds three previous

convictions for rape they may develop a hatred of him

and simply convict him for his past crimes immaterial

of what they think about the current charge.


34/44

34

If a person has served fifteen years for a crime then

even if you might not want to associate with them

surely all the hate you would have originally held forhim has been expunged by the suffering they served

during their fifteen years of incarceration. Even if one

or two of the jury still wanted him to suffer that is not

enough to convict. Hopefully the majority, especially

after they have been asked if they can be impartial in

the current case, are not the type who fester and carry

irrational grudges with accused people they have justmet.

1. The Law Report ABC Radio, 24th March 1998

2. Reagan, Ronald as quoted in Evan Whitton, TheCartel: Lawyers and their Nine Magic Tricks, p146

3. There is a concept in law known as the

Exclusionary Rule which, for some reason, relates

only to the exclusion of so called Public Interest

evidence, despite the whole list of categories of

evidence -as shown- that can, by law, be excluded

from a jurys deliberation.

4. Short G, Gomularz J and Orlando-Mercuri A, Fair

Go: Units 3 and 4 Legal Studies, Law Institute of

Victoria, Melbourne, 1994, p232.


35/44

35

5. Arenson, Kenneth, Propensity Evidence in Victoria:

a Triumph for Justice or an Affront to Civil Liberties?,

Melbourne University Law Review 12[1999],

6. Wilson RB, LBC Nutshell: Evidence, LBCInformation Services, Pyrmont, 1999, p.55.

7. McNicol S and Mortimer D, Evidence, Butterworths,

Melbourne, 1996, p.116.

8. Lord Cross of Chelsea, in Director of Public

Prosecutions v Boardman, [1975] AC421 at p,456.

9.http://www.activistrights.org.au/cb_pages/criminal_aff

ect.php

10. Peter Davis, Senior Counsel Queensland and Mark

Dight, Barrister DPP Victoria, Similar Fact Evidence

and Relationship Evidence

http://www.barweb.com.au/Upload/FCK/Pater%20Davi

s%20SC%20-%20LECTURE.pdf

11. Whitton, Evan The Cartel: Lawyers and their Nine

Magic Tricks, p106

1.2. Whitten, Note 11, p175.

COPYRIGHTS & CAMPAIGNS

BEN SHEFFNER'S NOTES ON COPYRIGHT, FIRST

AMENDMENT, MEDIA, AND ENTERTAINMENT LAW,

AND POLITICAL CAMPAIGNS

WEDNESDAY, JULY 22, 2009


36/44

36

Court denies motion to suppress MediaSentry

evidence; calls Tenenbaum's wiretapping argument

'bizarre'

Judge Nancy Gertner has denied Joel Tenenbaum'sMotion to Suppress all evidence collected by

MediaSentry. She ruled:

MediaSentry's activities from outside Massachusetts

in collecting evidence regarding Tenenbaum's Kazaa

use in Rhode Island do not implicate Massachusetts

private investigator or wiretapping laws.

Even assuming that evidence was collected in

violation of law, the remedy is not suppression in this

case, but instead is a suit against those who allegedly

engaged in the illegal acts.

MediaSentry did not engage in illegal wiretapping,

since Tenenbaum voluntarily exposed the contents of

his shared folder to other Kazaa users. The courtdescribed the wiretapping argument as "bizarre."

As far as I'm aware, every court to have considered

arguments against the admissibility of MediaSentry's

evidence has rejected them. MediaSentry essentially

surfs the Internet and makes note when it detects

potentially illegal activity. For such activity to requireprivate investigation licenses or to be characterized

as "wiretapping" would indeed be "bizarre," and

would potentially criminalize what millions of people

do every day. I can only surmise that those who


37/44

37

continue to press these arguments are so blinded by

RIAA Derangement Syndrome that they fail to see this.

Here's Judge Gertner's order:

Judge Nancy Gertner: Electronic ORDER entered

denying [853] Motion to Suppress. "The Defendant

raises a number of arguments why MediaSentry's

monitoring was illegal under state and federal wiretap

laws, as well as state licensing requirements for

private investigators. See Mass. Gen. L. ch. 272, s.

99(A); Mass. Gen. L. ch. 147, s. 22. Given thatMediaSentry did not conduct its monitoring from

Massachusetts, does not maintain a presence in the

state, and the computer on which MediaSentry

detected Tenenbaum's file-sharing was located in

Rhode Island at the time, Massachusetts' wiretapping

and licensing provisions would not seem to reach theconduct at issue at all. See Connelly Aff. (document #

866-5); Cox Comm. Subpoena Resp. (document # 866-

9). Regardless of which state's licensing requirements

are invoked, the Court previously considered a similar

motion to strike in London-Sire Records, Inc. v. Arista

Records LLC, Case No. 04-12434, holding that

"[n]either the rules of evidence nor the Fourth

Amendment bar the use of evidence arguably

unlawfully obtained by private parties in their private

suits." Jan. 9, 2009 Mem. and Order at 3-4 (document #


38/44

38

230). Tenenbaum's remedy for a search he believes

illegal under state laws is not exclusion of this

evidence, but a separate action against MediaSentry

or its employer under the state statutes he identifies.That leaves only the federal wiretapping provisions.

See Electronic Communications Wiretap Act, 18

U.S.C. 2510 et seq. Here, Tenenbaum proposes a

difficult analogy when he compares MediaSentry's

activities to illegal eavesdropping. The Defendant

made his computer's "shared folder" visible to theworld of KazaA users, for the very purpose of allowing

others to view and download its contents -- an

invitation that MediaSentry accepted just as any other

KazaA user could have. The electronic

communications that ensued were conducted with the

consent of both parties. As a result, it is bizarre

indeed to describe MediaSentry's decision to examineand record its counterpart's IP address as

eavesdropping, as though federal law prohibited

MediaSentry from determining where the data sent to

it from Tenenbaum's computer originated. It is as if

one received a letter in the mail, but was not allowed

to look at the return address.This principle makes nomore sense on the internet than in the non-digital

world, and it is not encompassed by the Act. The type

of IP information transmitted by KazaA and recorded

by MediaSentry is accessible to almost anyone with a


39/44

39

computer. Even if viewed as an "interception" -- a

characterization that the Court accepts here only as a

hypothetical -- MediaSentry's monitoring activities fall

within the statute's safe harbor for interceptions by aparty to the communication. See 18 U.S.C. 2511(1),

2511(2)(d); see also R.I. Stat. s. 12-5.1-1 et seq. (one-

party consent rule parallel to the federal statute).

Tenenbaum transmitted the digital files at issue to

MediaSentry, making it a party to the communication,

and he has not shown here that any interceptionoccurred with the purpose of committing a "criminal

or tortious act" under state or federal law. Id.; see also

Order on Motions in Limine, Capitol Records Inc. v.

Thomas-Rasset, Case No. 06-1497 (D. Minn. June 11,

2009). The Motion to Suppress MediaSentry Evidence

[853] is DENIED." (Gaudet, Jennifer)

(links added by me).

POSTED BY BEN SHEFFNER AT 5:45 AM

LABELS: COPYRIGHT, TENENBAUM

3 COMMENTS:

AnonymousJuly 22, 2009 at 6:49 AM

Perhaps less derangement syndrome and moremessianic complex.

http://en.wikipedia.org/wiki/Messianic_Complex

Reply


40/44

40

AnonymousJuly 22, 2009 at 9:50 AM

Thanks for the links Ben, I was wondering what the

judge meant when she cited London-Sire Records,Inc. v. Arista Records LLC, Case No. 04-12434,

obviously she meant London Sire v. Doe.

Reply

FrancisJuly 24, 2009 at 1:34 PM

Thanks for the updates. They're enlivening.

Reply

Comments here are moderated. I appreciate

substantive comments, whether or not they agree with

what I've written. Stay on topic, and be civil.

Comments that contain name-calling, personal

attacks, or the like will be rejected. If you want to rant

about how evil the RIAA and MPAA are, and howentertainment companies' employees and attorneys

are bad people, there are plenty of other places for

you to go.

Spy on Your Spouse at Your Own Risk: Illegal Spying

and Useless Evidence

Posted on Apr 05, 2012 by Andrew Tatge

In recent years, lawyers have seen an unbelievable

increase in the amount of electronic data used as


41/44

41

evidence in all lawsuits, including the use of e-mail,

internet browsing history, blogs, information placed

on social networking websites (MySpace, Facebook,

etc.), GPS devices, cell phone and text/instantmessaging, computer hard drives and other storage

devices, digital photographs, etc. This increase is due,

in part, to technology continuously improving,

becoming cheaper, and more available.

But what impact does electronic data have in a

divorce setting? Several years ago, a surveyconducted by the American Academy of Matrimonial

Lawyers, 88% saw an increase in the number of cases

using electronic data as evidence in the past five

years. That survey found e-mail to be the most likely

source of electronic evidence and found wives more

likely than husbands to use electronic data.

In relatively friendly divorces, electronic data has verylittle impact. However, in contentious divorces, the

impact (and increased costs associated with the time,

effort and expense of getting the information,

reviewing it, and presenting it to the court) can be

substantial.

However, courts do not like it when parties attempt toengage in self-help discovery outside of the litigation

process. Depending on what information you are

obtaining, you may even be breaking the law since

spying on your spouses e-mail transmissions,


42/44

42

internet usage, or phone conversations may violate

state and federal communication privacy and

wiretapping laws. The evidence also might not be

admissible in court. Minnesotas Privacy ofCommunications Act specifically prohibits use of

intercepted wire, oral, or electronic communications

obtained in violation of the Act. Even if not barred,

judges have a lot of discretion and rarely allow

illegally obtained evidence.

This does not mean that you divorce attorney cant orshouldnt seek electronic information as part of the

divorce proceeding. They can and they should.

Because of the importance of electronic evidence, the

legal system has methods in place to allow parties to

get information from each other.

Generally speaking, courts are more than willing to

allow parties access to relevant electronic evidence indivorce cases. Finding out that your spouse failed to

disclose assets or other relevant information can be

grounds for an award of attorneys fees or worse. It

doesnt help the bad actors credibility with the court

either.

In one case, Husband gave his old computer to theparties daughter. Wifes attorney had a forensic

examination of the computer and found very valuable

hidden assets. In another case, Husband found

information on Wifes MySpace page that allowed him


43/44

43

to get full custody of the children. This and other

information on the internet is extremely valuable and

as long as it is readily available to anyone, obtaining it

does not involve breaking the law.

E-mails are also valuable. However, intercepting e-

mail or stealing your spouses password to look at e-

mail is probably illegal. Some courts have found that

viewing your spouses e-mail after he or she has

downloaded it and saved it to the family computer is

legal and admissible, but before you do so, youshould consult your attorney. It is never a good idea

to begin spying on your spouse, or anyone else for

that matter, without having a clear understanding of

what you can or cant do.

Do not find yourself on the wrong side of federal and

state criminal or civil laws (such as trespass or

invasion of privacy). Remember that you dont get

around the law by having a friend or paid private

investigator do the illegal act for you. Almost as

important is that the ill-gotten information is not

admissible in the divorce proceeding anyway. So,

keep in mind the following:

Dont use spyware or intercept your spouses e-mails;Dont tape your spouses conversations without his or

her permission unless you are a party to the

conversation;

Dont plant bugging devices in your house;


44/44

44

Do leave the information gathering to your lawyer. In

the end, youll be glad you did.

Andrew M. Tatge is a business and family law attorney

with Gislason & Hunter LLP (www.gislason.com) andcan be reached at [email protected] or (507) 387-

1115. This information is general in nature and should

not be construed as tax or legal advice.

Wiretaps/Surveillance Detection

Documents

Transcript of Wiretaps/Surveillance Detection